Kodai Singh vs Jaisri Singh and Others

Straight, J.—The learned Judge appears to have refused to enter into the question of price because, the Rs. 799 not having been paid within the time directed by the decree of the First Court, he was of opinion that there was no subsisting decree from which an appeal could be preferred. Strictly speaking, the exact decree which stood at the date of the plaintiff''s filing his appeal was that of dismissal of his suit by reason of his having failed to deposit the Rs. 799 within 15 days, and had he appealed it on that footing he might have raised questions as to the propriety of the First Court''s finding on the matter of price and the time allowed him within, which to pay the amount into Court. I think, therefore, in this case it must be taken that there was a decree from which an appeal could be entertained, and that the plaintiff was entitled to get a determination of the question of price, which when decided might properly guide the Judge''s conclusions upon the further point as to whether the time allowed by the First Court was reasonable. We in no way wish to depart from what was thrown out in the Full Bench ruling of this Court reported in the N.W.P. Reports for 1868, p. 54, and followed by Pearson and Spankie, JJ., in ILR 2 All., p. 744, that an Appellate Court in its discretion may vary the decree of a first Court in the matter of time for payment, even though such time expired before the appeal was filed.

The effect of this view upon the present appeal is that it will be decreed and the appeal be remanded to the Court of the Judge of Gorakhpur for restoration to his file of pending appeals and disposal in ordinary course as an appeal upon the pleas, including that of time, taken by the plaintiff-appellant. Costs hitherto incurred will follow the result.

Mahmood, J.

This case has arisen out of a reference made by me, and the circumstances which gave rise to the reference are stated in my order of reference, dated the 28th May 1889, and I do not wish to repeat the circumstances of the case further than saying that my judgment in this case depends on, and refers to, that order and the facts stated therein for the consideration of the question of law which arises here. This being so, it is, I think, important for me specially, as the referring Judge in the case, to explain that my ruling in Chhidda v. Imdad Husain Weekly Notes, 1888, p. 4 is not inconsistent with the view expressed in the judgment which has just been delivered. That was not a case of a regular pre-emption decree which was the subject of appeal, but the appeal related to the execution of such a decree which fixed one month as the time for payment of price. That decree had become final by being affirmed by the appellate Court on the 15th January 1835, without any alteration as to the term of one month; but the deposit of the purchase money was not made till the 16th February 1885, that is, after the fixed period of one month, even as calculated from the appellate decree of the 15th January 1885. The Appellate Court in that case in passing its decree of the 15th January 1885 had, no doubt, power to decline to extend the period, as was held by the Full Bench in Sheo Pershad Lal v. Thakoor Rai N.W.P.H.C. Rep., 1868, p. 254, to which I referred, and, as a Court executing a decree, declined either to hold that the decree in fixing a period for payment of price was illegal or that the period of one month which it prescribed could he extended by the Court executing the decree. The argument that the period of one month should be calculated from the final appellate decree of the 15th January 1885 could not very well be pressed in that case (as indeed it was not pressed) in favor of the pre-emptor, decree-holder, because, as I have already said, oven upon that calculation his deposit of the price on the 16th February 1885 was beyond time. The case is therefore distinguishable from the present case. The real difficulty in connection with pre-emption decrees, and specially with reference to the point which has given rise to this reference, arises in considering whether such decrees, which are usually passed, or which purport to be passed, under s. 214 of the Code of Civil Procedure, are decrees in the nature of decrees nisi or decrees absolute in the same manner as in any other class of cases where the decrees may, by force of equity, be subjected to considerations and limitations of amount or time as to payment of money as a condition precedent to the recovery of possession, or subjected to other restrictions which the Court may deem fit to impose. This is a matter which I had to bear in mind in Rup Chand v. Shamsh-ul-Jehan ILR 11 All. 346, and I dealt with the matter in a suit for pre-emption itself, dealing with it much upon the same principles as those governing other conditional decrees passed in suits where the possession of immovable property is subjected to conditions. I think it is enough to say, in order not to delay or prolong my judgment, that, as I have already explained, between my ruling in Chhidda v. Imdad Husain ILR 11 All. 346, and the ruling in Rup Chand v. Shamsh-ul-Jehan ILR 11 All. 346 no distinction of principle really exists, and it is only because the learned Judge of the lower Appellate Court misapplied the former ruling that he considered that the ruling relieved him of the duty of trying the suit upon the merits. I think the rule which was laid down in Rup Chand v. Shamsh-ul-Jehan ILR 11 All. 346 is a rule which should govern this case, consistent as it is with the principle of the Calcutta Court in Koni Meah and Others Vs. Noor Ali Chowdhuri, and the Bombay Court ruling in Daulat and Jagjivan v. Bhukandas Manekchand ILR 11 Bom. 172, to both of which I referred in the case. I am also glad that the conclusions arrived at by me in this case are wholly consistent with those arrived at in the judgment which has just been delivered. I therefore agree in the order which has been made in the case by my brother Straight.

Edge, C.J.

In concurring with the judgment which has been delivered by my brother Straight, I should say that I understand that judgment to be in no way based upon any cases referred to in the judgment just delivered by my brother Mahmood. As to those cases and the inferences to be drawn from them I decline to express any opinion. I am of the same opinion as my brother Straight.

Brodhurst, J.

I concur with my brother Straight.

Tyrrell, J.

I also concur with my brother Straight without expressing any opinion on the cases just referred to in his judgment by my brother Mahmood.